HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/3STATE-C.ASC

Text File | 1993-01-14 | 15KB | 316 lines

/* This case was reported in 523 N.Y.S.2d. 954 (Sup. 1988).  In
this case, a publishing company seeks a judgment permitting it to
receive a death certificate that shows a person died of HIV
despite privacy laws. The Court permits the the death certificate
to be reviewed. */

Application of TRI-STATE PUBLISHING COMPANY, A  DIVISION OF
OTTAWAY NEWSPAPERS, INC., Petitioner,



v.

CITY OF PORT JERVIS, James J. Hinkley, Clerk of the City of Port
Jervis, the State of New York and David Axelrod, Commissioner of
the Department of Health, State of New York, Respondents.



Supreme Court, Orange County.

/* The Supreme Court, being the TRIAL level court. */

Jan. 4, 1988.



IRVING A. GREEN, Justice.

This is an article 78 proceeding.  The first cause of action set
forth in the petition seeks judgment under the Freedom of
Information Law (FOIL, Article 6 of the Public Officers Law,
sections 84 et seq.) granting petitioner the right to inspect and
copy the death certificate of a certain individual which record
is maintained and kept by the City of Port Jervis.  Petitioner
further seeks an award of attorney's fees from respondents.
Public Officers Law 89(4)(c).

It is alleged in the petition that such individual was believed
to have died of the disease Acquired Immune Deficiency Syndrome,
commonly known as "AIDS", and that death from such disease in the
Orange County community was a matter of "grave public concern."

The second cause of action seeks to declare unconstitutional
Public Health Law 4174(1)(a) upon the ground that the terms
therein as they relate to inspection of death certificates are
unconstitutionally vague and unclear.

On or about September 2, 1986 a reporter for a publication owned
by petitioner applied in writing to respondent, City of Port
Jervis, to inspect the death certificate of one Norman Gardner,
Jr., who it is alleged, upon information and belief, died from
AIDS or complications arising, therefrom, on August 21,1986 while
a patient at Mercy Hospital, Port Jervis, New York.

On or about September 4, 1986 respondent, James J. Hinkley, the
Port Jervis City Clerk denied petitioner's request. It is
acknowledged in respondents', City of Port Jervis and James
Hinkley, answer that James Hinkley is the duly appointed
registrar of vital statistics for the City of Port Jervis and the
access officer of the City of Port Jervis for records sought
under FOIL. Public Officers Law 87.

Respondent, Commissioner of the Department of Health, State of
New York, has supervisory power over registrars, and registrars
are placed under the supervision and direction of respondent,
Commissioner, to accomplish uniform compliance with article 41 of
the Public Health Law which mandates, inter alia, the
registration of deaths, and the preservation and maintaining of
such records.  Public Health Law 4101.

The Port Jervis Common Council had re quested the opinion of the
New York State Department of Health concerning petitioner's
application.  By letter dated October 10, 1986, Vito M. Logrillo,
identified as Director of Health Statistics, stated in response
to the City's request that "the death record should not be
released since the request does not cite a judicial purpose, nor
has a proper purpose been established."

By letter dated November 4, 1986 petitioner was informed that on
October 27, 1986 the Port Jervis Common Council, acting as the
"Freedom of Information appeals board", had "upheld the denial of
[petitioner's] request for access to the death certificate of
Norman Gardner, Jr." Public Officers Law 89(4)(a).

On November 10, 1986 petitioner made request to the Department of
Health for a copy of the death certificate. The request was
denied by letter dated November 18, 1986 authored by Vito M.
Logrillo, and by letter dated November 24,1986 written by one
Donald Macdonald identified in the letter as, "Records Access
Officer".  The Macdonald letter advised petitioner of the next
step in taking an administrative appeal from Macdonald's
determination. No further administrative review was sought by
petitioner within the Department of Health.

In refusing access to the death records sought by petitioner,
respondents, City and Hinkley, rely in their papers upon the
"statutory language in the Public Health Law and the Freedom of
Information Law and the instructions and directives of the
Department of Health."

Respondent, Commissioner of the Department of Health, asserts his
department properly denied permitting release of the death
certificate upon the ground that the release of such record "did
not appear to be necessary or required for judicial or other
proper purposes."

Respondents, Commissioner and State of New York, further allege
petitioner has failed to exhaust its administrative remedies.

Respondents rely upon Public Health Law 4174(1)(a) which states
in relevant part:

"1.  The commissioner or any person authorized by him shall

(a)  upon request, issue to any applicant either a certified copy
or a certified transcript of the record of any death registered
under the provisions of this chapter, unless he is satisfied that
the same does not appear to be necessary or required for judicial
or other proper purposes."  (emphasis added).

At 10 NYCRR 35.4(a) the Commissioner has promulgated the
regulation that, "A certified copy of a death certificate ...
shall be issued upon request unless it does not appear to be
necessary or required for judicial or other proper purposes."

Respondents contend that subdivision (a) of the statute set forth
above concerns release of death certificates which include
medical information such as cause of death and that the release
of such information is dependent upon petitioner demonstrating a
"proper purpose"; and that petitioner has not demonstrated "a
proper purpose" and that petitioner has not indicated any motive
for its request other than "idle curiosity".

Respondent, Commissioner, further argues that petitioner's
request "seeks to infringe upon the right of privacy of the
decedent and his next-of-kin," while, "It is just such an
infringement that the Legislature sought to protect against."

It is noted that in accordance with an interim order issued by
this court the next living relatives of decedent have been served
with the petition and other papers in this proceeding.

Public Officers Law, sec. 87(2) provides in relevant part:

"2.  Each agency shall, in accordance with its published rules,
make available for public inspection and copying all records,
except that such agency may deny access to records or portions
there of that:

(a)  are specifically exempted from disclosure by state or
federal statute;

(b)  if disclosed would constitute an unwarranted invasion of
personal privacy under the provisions of subdivision two of
section eighty-nine of this article;

"Under the Freedom of Information Law all records of governmental
agencies are presumptively available for public inspection and
copying, without regard to status, need, good faith or purpose of
the applicant requesting access." Matter of Farbman & Sons v. New
York City Health & Hosps. Corp., 62 N.Y.2d 75, 79-80, 476
N.Y.S.2d 69, 464 N.E.2d 437.

The Court of Appeals has held that is order to insure the maximum
public access to government records, full disclosure is compelled
unless the agency can demonstrate that the requested records fall
with-in one of eight categories of exemptions, which moreover,
are to be narrowly construed. Mtr. of Scott, Sardano & Pomeranz
v. Records, 65 N.Y.2d 294, 491 N.Y.S. 2d 289, 480 N.E.2d 1071.

Of the possible eight enumerated categories of exemptions from
disclosure under FOIL only two appear to be relevant to the
claimed exemption in this case i.e. disclosure exempted by state
statute, or unwarranted invasion of personal privacy. Public
Health Law 4174(1)(a); Public Officers Law 87(2).

[1])  A reading of the relevant statutes and cases concerning
"privacy" under

FOIL indicates that the protection against unwarranted invasion
of privacy is provided for the personal benefit and protection
of the persons who are the subject party of the information
sought to be disclosed. Public Officers Law 89(2)(b);  Short v.
Board of Managers of Nassau County Medical Center, 57 N.Y.2d 399,
456 N.Y.S. 2d 724, 442 N.E.2d 1235; Harris v. City University of
New York, Baruch College, 114 A.D.2d 805, 495 N.Y.S.2d 175.

There is no expressed exemptions in FOIL which grants to a
decedent's personal representative, or to the next-of-kin or
survivors of a decedent, the right on decedent's behalf to
prevent disclosure of decedent's death certificate.  Generally,
where rights of personal privacy are involved the exercise of the
rights are limited to the living and may not be asserted by
others after decedent's death.  Schumann v. Loew's Incorporated,
135 N.Y.S.2d 361; Mtr. of Rome Sentinel Co. v. Boustedt, 43
Misc.2d 598, 252 N.Y.S.2d 10. There is no general common law
right to privacy (Arrington v. NY Times Co., 55 N.Y.2d 433, 440,
449 N.Y.S.2d 941, 434 N.E.2d 1319). Such rights as exist,
generally, are creatures of legislative statutes whose provisions
alone set out its perimeters.

[21 This court concludes that disclosure of the death certificate
in issue would not constitute an invasion of personal privacy as
defined in the relevant statute and thus exempt from the mandates
of disclosure under FOIL.

With respect to the question of whether the desired disclosure is
exempted by state statute, this court addresses Public Health Law
4174(1)(a).  Public Health Law 4174 does not, by its express
language, exempt from disclosure a death certificate.  The intent
of said statute, as it has been amended and evolved, and as it
reads, is to promote the right to copies of death records. Mtr.
of Rome Sentinel Co. v. Boustedt, 43 Misc.2d 598, 252 N.Y.S.2d
10. The commissioner or any person authorized by him "shall
issue" the death record. That disclosure may not be mandated in
all cases is the exception to the rule.

/* The counter argument is that the release of the fact that a
person died of HIV may cause questions about their spouse or
sexual partners having HIV, or, cause embrassment since, as other
cases note, persons often assume that infection with HIV means
that a person is homosexual, etc. */

[3] Although it is not necessary that a state statute must
expressly state it is intended to establish a FOIL exemption
there  is required to be a showing of clear legislative intent to
establish and preserve that confidentiality which one resisting a
FOIL disclosure claims as protection.  Capital Newspapers v.
Burns, 67 N.Y.2d 562, 565 567, 505 N.Y.S.2d 576, 496 N.E.2d 665;
Farbman v. NYC Health & Hosps., 62 N.Y.2d 75, 80, 476 N.Y.S.2d
69, 464 N.E.2d 437.

With the burden upon the government to prove entitlement to
exemption of its records from disclosure under FOIL, the
determination of respondent, Commissioner, that petitioner's
request is made for other than a "proper purpose" is examined.
Public Health Law 4174(1)(a).

[4]  It cannot reasonably be concluded that the investigative
reporting of a possible case of AIDS in the locality served by
petitioner newspaper publisher is not, in the present climate,
legitimate reportage. The disease is a matter of great public
concern.

The right of the public to know and be informed of the reality of
AIDS in its own local community, if such is the case, is not
merely gratification of "idle curiosity" on the part of the news
organization seeking to gather and publish such information but
is in the furtherance of a legitimate and specific public purpose
and in harmony with the legislative purpose of FOIL "that the
public, individually and collectively and represented by a free
press, should have access to the records of government" Public
Officers Law 84; Mtr. of Rome Sentinel Ca v. Boustedt 43 Misc.2d
5~8, 601, 252 N.Y.S.2d 10, supra.

The public's active interest and concern with the prevalent AIDS
disease is evident from the numerous informational and edu
cational public programs undertaken by medical research
personnel, health agencies, as well as television and radio
programs, banks and newspaper reports. It is beyond cavil that
the AIDS epidemic indeed is a matter of large public interest and
concern.

This petition presents, in the opinion of this court, a proper
purpose of the petitioner in fulfilling its historic role of a
free press informing the public of its legitimate interests and
concerns. The determination of respondents that the request for
the death certificate was for other than a "proper purpose" is
not sustained.

Accordingly, respondents have not met their burden of proof that
the death certificate be exempted from disclosure.

[5]  Respondents,  Commissioner  and State of New York, have
pleaded in their answer the affirmative defense that petitioner
did not exhaust its administrative remedies prior to commencing
the instant article 78 proceeding.  It is noted such affirmative
defense has not been pleaded by respondents, City of Port Jervis
and Hinkley, in their answer.

It does not appear to be disputed that the death certificate is
in the possession and control of respondents, City of Port Jervis
and James J. Hinkley, the local registrar. Petitioner appealed
the adverse determination of Hinkley to the Port Jervis Common
Council which denied the appeal.

The applicable statute provides that a person denied access to a
record in an appeal determination by the governing body of the
entity may commence an article 78  proceeding.   Public  Officers
Law 89(4)(a)(b).  Petitioner followed this procedure as against
respondents, City of Port Jervis and Hinkley.

That petitioner did not pursue administrative review within the
Department of Health has no effect upon the right to seek
judicial review of the final administrative determination made by
respondent, City, and to which no such affirmative defense on the
part of respondents, City and Hinkley, has been asserted.

The court does not reach nor determine the issue of
unconstitutionality claimed by petitioners.

Nor does the court conclude that the awarding of attorneys fees
to any of the parties is appropriate and no such award is made.

Accordingly, the petition is granted to the extent respondents,
City of Port Jervis and James J. Hinkley, are directed within  10
days of service upon them of a copy of this judgment with notice
of its entry to issue to petitioner a copy of the death
certificate of Norman Gardner, Jr.

In all other respects the petition is denied.